Update: SCOTUS Rules Abercrombie & Fitch “Look Policy” Violates Title VII

June 2, 2015

UPDATE: On June 1, 2015, the Supreme Court ruled in favor of Petitioner, Samatha Elauf, a seventeen year-old Muslim woman who applied for a job at an Abercrombie Kids store. In an 8-1 decision, the Supreme Court ruled that employers can’t refuse to hire job applicants who require accommodations for their religious beliefs, even if the potential employee has not explicitly requested an accommodation and regardless of whether the employer knows for certain that religious accommodation is needed.

Abercrombie & Fitch argued that it had to have actual knowledge of Ms. Elauf’s religious accommodation and that applying its “Look Policy” was not discriminatory because it was neutral in application. The Supreme Court rejected this argument holding that to win a claim of disparate treatment, a job seeker need only show that her need for accommodation was a motivating factor for an employer and not that the employer actually knew of the accommodation.

Justice Scalia’s majority opinion held that: “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, an actor in employment decisions” and that even an “unsubstantiated suspicion” that a prospective employee would require religious accommodation is not a permissible reason not to hire them.

This decision is controversial. The National Federation of Independent Business said that the decision set a “legal minefield” for employers who may ask job applicants about religious needs but reject them for other reasons. In contrast, the American Civil Liberties Union hailed the decision as a “powerful reminder that religious discrimination has no place in the workplace.” Either way, the Supreme Court has clarified an employer’s obligation regarding religious accommodations which serves as a cautionary tale to businesses.

You can access the Supreme Court opinion here. See our previous post on this case here.